SERCOMBE & WENFELD - [2019] FCCA 3525

FEDERAL CIRCUIT COURT OF AUSTRALIA

SERCOMBE & WENFELD

[2019] FCCA 3525

Catchwords:
FAMILY LAW – Parenting arrangements –practical difficulties – parents live some distance apart – incapacity of the parents to communicate – fifteen year old child – views of the child – joint and several parental responsibility – best interests of the child – order made for the child to live with the father and spend time with the mother.

Legislation:

Family Law Act 1975 (Cth), ss.65F, 60CA, 60B, 61DA, 65DAC, , 61C, 60CC, 65DAA, 60CA

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (No.2) [2010] FamCAFC 101

Mazorski & Albright [2007] FamCA 520

Stevenson & Hughes [1993] FamCA 14

Harrison & Woollard (1995) FLC 92-598

Re R Children’s Wishes [2000] FamCA 43

Applicant:

MS SERCOMBE

Respondent:

MR WENFELD

File Number:

PAC 5638 of 2007

Judgment of:

Judge Harman

Hearing date:

11 February 2019

Date of Last Submission:

11 February 2019

Delivered at:

Parramatta

Delivered on:

11 February 2019

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

I discharge all prior parenting Orders with respect to the child X (known as X) born … 2004.
THE COURT NOTES that no Order for the allocation of parental responsibility is made and with the consequence and intention that section 61C of the Family Law Act 1975 will apply such that the parents have joint and several parental responsibility and each is entitled to make major issues decisions for X at such times as he is in their respective care and with the consequence, as X will be in his father’s care during school terms, that the father will decide the school at which X is enrolled subject to the following Orders.
X shall live with his father.
X shall spend time and communicate with his mother:
(a)Each alternate weekend during school terms from 5pm Friday until 5pm Sunday with changeovers to occur at the commencement of each period at Suburb A Railway Station and at the conclusion of each period at the mother’s home;
(b)In addition to the above, X shall spend one half of each NSW school holiday period with his mother being, absent agreement between the parents:
(i)During the short NSW school holidays (i.e. those following terms 1, 2 and 3) from 12noon on the first Saturday of the holiday period until 5pm on the middle Sunday of the holiday period, and;
(ii)During the Christmas school holiday period for the first half of the holiday in each alternate year commencing 2019/2020, being from 12noon on the day after the last day of school attendance term 4 until 5pm on 9 January;
(iii)For the second half in 2020/2021, from 12noon on 9 January until 5pm on the last Sunday before the commencement of the following school term;
(iv)With changeover arrangements to be as above (changeover at Suburb A Railway Station at the commencement of the period and the mother’s home at the conclusion of the period).
Each parent shall be entitled to telephone…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 3525
Decision Date: 11 February 2019

CaseChat Overview and Summary

In the matter of Sercombe & Wenf eld, Judge Harman considered parenting arrangements for a fifteen-year-old child, X. The dispute arose from practical difficulties between the parents, who lived some distance apart, and their apparent incapacity to communicate effectively. The court's primary focus was on determining the best interests of the child, taking into account his views.

The legal issues before the court included how to allocate parental responsibility, specifically regarding major decisions, and establishing a living and spending time arrangement for X that would serve his best interests. The court also had to consider the implications of joint and several parental responsibility under section 61C of the Family Law Act 1975 in the context of the parents' differing residences and communication challenges.

Judge Harman ordered that prior parenting orders be discharged. Crucially, no specific order for the allocation of parental responsibility was made, meaning the parents would retain joint and several responsibility for major decisions, with each parent entitled to make such decisions when X was in their care. The court ordered that X shall live with his father and spend time with his mother on alternate weekends during school terms, as well as half of each NSW school holiday period, with specific arrangements for changeovers and communication. Further orders mandated that both parents be recorded as emergency contacts at X's school and be kept fully informed and consulted regarding medical treatment and hospitalisation.

Orders

Orders of the court

I discharge all prior parenting Orders with respect to the child X (known as X) born … 2004.

THE COURT NOTES that no Order for the allocation of parental responsibility is made and with the consequence and intention that section 61C of the Family Law Act 1975 will apply such that the parents have joint and several parental responsibility and each is entitled to make major issues decisions for X at such times as he is in their respective care and with the consequence, as X will be in his father’s care during school terms, that the father will decide the school at which X is enrolled subject to the following Orders.

X shall live with his father.

X shall spend time and communicate with his mother:

(a) Each alternate weekend during school terms from 5pm Friday until 5pm Sunday with changeovers to occur at the commencement of each period at Suburb A Railway Station and at the conclusion of each period at the mother’s home;

(b) In addition to the above, X shall spend one half of each NSW school holiday period with his mother being, absent agreement between the parents:

(i) During the short NSW school holidays (i.e. those following terms 1, 2 and 3) from 12noon on the first Saturday of the holiday period until 5pm on the middle Sunday of the holiday period, and;

(ii) During the Christmas school holiday period for the first half of the holiday in each alternate year commencing 2019/2020, being from 12noon on the day after the last day of school attendance term 4 until 5pm on 9 January;

(iii) For the second half in 2020/2021, from 12noon on 9 January until 5pm on the last Sunday before the commencement of the following school term;

(iv) With changeover arrangements to be as above (changeover at Suburb A Railway Station at the commencement of the period and the mother’s home at the conclusion of the period).

Each parent shall be entitled to telephone or otherwise communicate with X via electronic means (including but not limited to email, Skype, Facetime or similar electronic platforms or applications) at all reasonable times and with reasonable frequency whilst in the care of the other parent and neither parent shall take any step to block or create an impediment to that communication between X and the other parent.

Each parent shall forthwith and to the extent that they have not already done so, do all things, sign all documents and give all consents, authorities and instructions as are necessary to enable the details of each parent to be recorded as both parent and emergency contact person with any school attended by X and so that each parent is entitled to obtain reports, information, notification of events to which parents are invited or encouraged to attend and to attend such events.

Each parent shall forthwith and contemporaneous with the event advise the other of any specialist medical appointment, significant illness or injury or hospitalisation relating to X and shall provide such instructions and authorities as are necessary to ensure that each parent can be fully advised and consulted with respect to treatment and to visit X if hospitalised.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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